Complainant

Respondent

Anonymised Parties

{A Complainant}

{A Charity}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028628-001

23/05/2019

The Complainant went on a specific Community Employment Scheme commencing on 23rd May 2016. The Complainant complied with the terms of the scheme.

The Complainant went on a programme. He began having personal problems and became homeless in 2017. He reported alcohol difficulties to his key worker, but could not get counselling. He was unhappy with the standards of training and did not receive the training expected although he received a certificate saying he had level 1 & 2 computers. Members of the group had personal problems and he intervened to try to get a person who had been suspended back on the course. Two attendees on the course committed suicide.

Some time later he signed a new behavioural contract and agreed certain steps. He was notified by the key worker that his contract was terminating on 25th May 2018. He pleaded to stay on the course as it was helping but this was refused. He asked whether this was due to his comments relating to personal problems of some of the group which the key worker denied. He was offered other courses instead but he left.

The Complainant lodged his complaint of unfair dismissal on 23rd May 2019 outside of the 6 month required time-limit due to alcoholism, medical problems and losing his family. He went in to respite and is now recovering. He seeks an extension of time to allow his complaint to proceed in the circumstances.

The Respondent says the Complainant went on a specific recovery programme on 23rd May 2016 which is for a 12 month period. His entry requirements for the course were confirmed by his GP at the time.

During the 2 weeks holidays over the summer 2017 the Complainant and another attendee sought to attend the Respondent as they wanted to retain structure in their day. They offered to paint a room of the Respondent and this was allowed by the Respondent.

The Complainant had difficulty staying in the family home and the Respondent helped him with advocacy regarding his homelessness status. When the Complainant disclosed that alcohol was becoming a problem he was offered support and offered support on a programme which he completed. He declined the offer of counselling.

The Complainant was informed his contract would concluded on 18th May 2018 giving him 4 week’s notice. He no longer qualified for the course. He was offered other courses which would be a progression for him and were mainstream Community Employment Schemes. Appointments were also made by the Respondent for the Complainant for key working sessions and treatments which he did not attend.

The course which the Complainant attended is a 12 month course. This had been extended for a second year.

I have carefully considered the verbal and written submissions of the parties.

The Complainant seeks to extend time to allow his complaint to proceed as it was submitted outside the 6 month statutory time-limit.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant suffered from an illness during the period after his dismissal. This has been verified by an organisation. His recovery took place in March 2019 and this contributed to the delay of the Complainant in lodging his complaint. He does not have a legal advisor. In the circumstances, I find there is reasonable cause to extend time to allow the complaint to proceed.

The Complainant attended a recovery programme Community Employment scheme with the Respondent on a part-time basis for 12 months for 19.5 hours work per week. This commenced on 23rd May 2016. He signed a fixed-term contract of employment for 12 months. The Complainant’s sponsor applied for an extension for another year of the same course for the Complainant on 23rd March 2017.

The Community Employment scheme is designed to help people who are long-term unemployed by offering temporary placements which provide education and training to jobseekers.

The terms of the Complainant’s employment contract with the Respondent do not specify that the Unfair Dismissals Acts 1977-2015 shall not apply to a dismissal consisting only of the expiry of the 12 month employment contract. The Labour Court has repeatedly emphasised the requirement that the terms of S2 (2) b of the Act must be fully satisfied in Sheehan v Dublin Tribune Ltd [1992] ELR 239 and other rulings in order for the exemption from the Unfair Dismissals Act 1977 as amended to apply. Therefore the complaint can proceed under the Unfair Dismissals Act 1977 as amended.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

The onus lies on the Respondent to justify the dismissal. The Respondent relies on the terms of the specific recovery programme in which the Complainant participated which runs for a period of 12 months only. This was extended for an additional 12 months for the Complainant. He was given 4 weeks notice of termination. The Complainant had progressed to stability and no longer qualified for the course. The Complainant was then offered progression to other mainstream courses, and assistance from another unit which he refused.

The Complainant says he was happy on the course with his peers. He was not happy with many of the services provided by the Respondent on the programme. The contract of employment for rehabilitation which the Complainant signed was for a fixed-term of 12 months. This provides that the contract is subject to change pending 30 day’s notice and consultation.

In the circumstances, I am satisfied that the Complainant no longer qualified for the programme and there are substantial grounds for dismissal. The Respondent acted reasonably in the circumstances. I find the Complainant was not unfairly dismissed.

I find the Complainant was not unfairly dismissed.

Fixed-term contract, exemption from Act, rehabilitation contract, Community Employment Scheme